Local Government Law Bulletin

The Office of the Attorney General recently released Public Access Opinion 18-001, which looked at whether a municipality violated the Freedom of Information Act (FOIA) by redacting portions of an email sent by the Village President.

A radio station sought a copy of the resignation letter delivered by a former Village President. The resignation was sent in an email addressed to the Village Trustees and Village Clerk, at their Village email addresses. In the email, the Village President addressed his final decision to resign from office, which included his opinion concerning the circumstances behind his decision.

The Village raised two arguments in support of its decision to redact, (1) Section 7(1)(f) of FOIA and (2) Section 7(1)(n) of FOIA.

Section 7(1)(f) of FOIA protects preliminary records reflecting the opinions that public officials form while creating government policy. The Village claimed an exemption under this provision when it responded to the Office of the Attorney General, stating that the redaction contained an opinion expressed that is not final policy of the Village. The Office of the Attorney General determined that although the resignation contained the Village President’s opinion, it was not expressed as part of a deliberative or decision-making process, rather, it represented a single and final communication concerning his tenure as Village President. Therefore, the Village was not exempt from disclosure.

Section 7(1)(n) of FOIA exempts from disclosure records relating to a public body’s adjudication of employee grievances or disciplinary cases. The Office of the Attorney General held that because the Village failed to identify an ongoing-to-contemplated employee grievance, complaint, or disciplinary action that was or would be adjudicated, the redacted portion could not be considered related to “adjudication.” Again, the Office of the Attorney General found that the resignation was created and sent for purpose of explaining the reasons for the resignation, and was not exempt from disclosure.

In sum, the Office of the Attorney General found that the resignation was not exempt under 7(1)(f) because the opinions expressed were final, and not part of a deliberative process to formulate Village policy. Likewise, the Village was not exempt under 7(1)(n) because the Village failed to carry its burden in demonstrating an active adjudication regarding the employee grievance.

Specifically, the injury occurred during an officer’s stop of an overweight vehicle. After the semitrailer was stopped and weighed, the officer ascended the ladder to inspect the vehicle’s load. While he was going up the ladder, he felt a “pop” in his knee. The officer then descended and completed the necessary paperwork and citation. The officer eventually needed to undergo knee replacement surgery. Both parties agreed that the injury was “catastrophic.”

However, the City denied the officer’s request for benefits under section 10(b) of the Act on the theory that the injury did not occur under one of the four circumstances identified in section 10(b). Section 10(b) states, in pertinent part, as follows:

(b) In order for the law enforcement, correctional or correctional probation officer, firefighter, spouse, or dependent children to be eligible for insurance coverage under this Act, the injury or death must have occurred as the result of [1] the officer’s response to fresh pursuit, [2] the officer or firefighter’s response to what is reasonably believed to be an emergency, [3] an unlawful act perpetrated by another, or [4] during the investigation of a criminal act.” 820 ILCS 320/10(b).

As a result of the denial, the officer filed a declaratory action against the City, alleging that the injury occurred in response to an unlawful act perpetrated by another. In response, the City claimed that the injury did not occur during the actual commission of an unlawful act because the officer’s injury “was sustained after the truck had already been stopped and during his subsequent inspection of the truck’s load.” The Circuit Court ruled in favor of the officer and found that the health insurance benefits delineated in section 10(b) applied. Specifically, the circuit court equated “as a result of” with the concept of “proximate cause.”

On appeal, the circuit court analyzed the meaning of “as a result of” as used in the Act. As the statute did not define the phrase “as a result of,” the Court looked to dictionaries to define the common meaning of the phrase. In doing so, the court determined that the injury was clearly a consequence of the driver’s unlawful conduct and the officer was entitled to benefits under section 10(b) of the Act. The Court reasoned that though the officer had already determined that the vehicle was overweight, the officer still needed to look at the “type of load” so that he could fulfill his duties as a police officer (completing the overweight report and issuing a citation). However, while the appellate court came to the same conclusion as the circuit court, the appellate court refused to equate “as a result of” with the concept of “proximate cause.”

One justice dissented, raising a concern that such a decision will expand the scope of benefits under the Act. While only time will tell if such a concern is correct, we will continue to monitor how courts interpret the Act.

On November 16, Public Act 100-554 was signed by Governor Rauner and became effective immediately. Within P.A. 100-554 was an amendment to section 70-5 of the State Officials and Employees Ethics Act. This amendment requires that within 60 days of the passage of the act, each governmental unit adopt an ordinance or resolution establishing a policy to prohibit sexual harassment.

Sexual harassment as defined by the Act means any unwelcome sexual advances or request for sexual favors. The definition of sexual harassment also includes any conduct of a sexual nature which occurs in one of the following circumstances. First, when submission to the conduct is explicitly or implicitly a term of or condition of their employment. Second, when submission or rejection of the conduct is used as a basis for an employment decision affecting that individual. Finally, where the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

At a minimum, the ordinance or resolution establishing a policy prohibiting sexual harassment has to include four things. First, it must include a prohibition on sexual harassment. Second, it must have details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, or the Department of Human Rights. Third, there must be a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the State Officials and Employees Ethics Act, the Whistleblower Act, and the Illinois Human Rights Act. Fourth, the ordinance or resolution must state the consequences of a violation for the prohibition on sexual harassment as well as the consequences for knowingly making a false report.

To remain in compliance with the law, units of local government must adopt the resolution or ordinance no later than January 15, 2018.

The Illinois Supreme Court has redefined state law as to what is a qualified “trail” for purposes of the Local Government and Governmental Employees Tort Immunity Act (“Tort Immunity Act”). The subject case, Corbett v. County of Lake, involved a bicyclist sustaining injuries arising out of an uneven area of a paved pathway that ran parallel to a railroad track and which was otherwise surrounded by commercial businesses.

The subject provision of the Tort Immunity Act states that “neither a local public entity nor a public employee is liable for an injury caused by a condition of…any hiking, riding, fishing, or hunting trail.” The history of the case was that the trial court granted the municipal defendant’s motion for summary judgment on the issue of immunity because the path was being used as a bicycle riding trail. The appellate court overturned the trial court and ruled that a “trail,” by the court’s chosen dictionary definition, required that it be surrounded by a forest or mountainous region, which the path was clearly not.

While the Supreme Court agreed with the decision of the appellate court, it specifically rejected the definition of “trail” it used. The Supreme Court determined that the correct definition is not based on what surrounds the path but that “the legislature intended to apply blanket immunity only to primitive, rustic, or unimproved trails.” In other words, a well-marked and paved shared-use path would not qualify for immunity. The Court noted the potential absurd over-application of the immunity if it could be applied to any paved path which went through public parks just because there were trees around the path.

In September 2017, the United States Court of Appeals for the Seventh Circuit ruled that an employer was not required to accommodate an employee by granting him a multimonth leave after the employee’s 12 week FMLA leave expired.

In the case of Severson v. Heartland Woodcraft, Inc., 872 F. 3d 476 (7th Cir. 2017), the employee used all 12 weeks of FMLA leave and then scheduled a surgery on the final day of leave. The employer denied the request for extended leave and terminated the employee.

The employee asked the Court to extend the interpretation of “reasonable accommodation” under the Americans with Disabilities Act (ADA) to include long-term unpaid leave. The Court held that that a long-term leave of absence cannot be a reasonable accommodation. The Court rationalized by maintaining that a reasonable accommodation gives a disabled individual the means to work, while an extended leave of absence excuses the employee from working.

The EEOC filed a brief in support of the employee in which it argued that long-term medical leave should qualify as a reasonable accommodation when the leave is for a definite time, limited duration, requested in advance, and likely to enable the employee to perform the essential job functions upon return. The Court disagreed with the interpretation, finding that such application would transform the ADA into a medical leave statute, as an “open-ended extension of the FMLA.”

As such, employers should take note that “reasonable accommodations” under the ADA do not include long-term unpaid leave.

The Office of the Attorney General recently released Public Access Opinion 17-011, which looked at whether a 9-1-1 call is beyond the reach of a Freedom of Information Act (FOIA) request.

A radio station sought to obtain two 9-1-1 recordings possessed by the Will County Sheriff’s Office in regard to the death of a 17-month-old child. The radio station filed two FOIA requests for the 9-1-1 calls on April 27, 2017, with the Will County Sheriff’s Office. The Will County Sheriff’s Office denied both requests for two stated reasons. First, the Will County Sheriff’s Office claimed that one recording was exempt from FOIA because it contained private information, in particular biometric identifiers. Second, the Will County Sheriff’s Office argued that the second recording was exempt from FOIA because the disclosure of the recording could impede the active investigation into the death of the child.

In regard to the first argument, the Office of the Attorney General determined that the common understanding of a biometric identifier was the measurement and analysis of a unique physical or behavioral characteristic that identifies a person. Because the 9-1-1 recording did not analyze caller’s voice to determine its identity, there were no biometric identifiers in the recording and therefore it was not exempt from the FOIA.

As to the argument that disclosure of the second recording could impede the active investigation, the Office of the Attorney General noted that the public agency must show a factual basis as to why disclosure would interfere with an ongoing criminal investigation. Finding that the Will County Sheriff’s Office did not provide enough facts to establish how it would interfere with the investigation, the Office of the Attorney General determined that the recording was not exempt from FOIA requirements.

In sum, the Office of the Attorney General found that a voice recording that did not involve an analysis of the voice to determine the speaker does not qualify as containing biometric identifiers and therefore is subject to FOIA requests. The Office of the Attorney General also found that a mere assertion that a disclosure would impede an ongoing criminal investigation, without a sufficient factual basis, is insufficient to exempt a record from FOIA requests.

Recent changes went into effect for the Police and Community Relations Improvement Act (“Act”). The Act originally went into effect in 2016 and requires all law enforcement agencies to have a written policy addressing investigations into officer-involved deaths.

The amendment adds an additional requirement that law enforcement agencies must adopt a written policy mandating drug and alcohol testing of an officer involved in an “officer-involved shooting,” as soon as practicable, but no later than the end of the officer’s shift in which the shooting occurred.

Changes to drug and alcohol testing policies are typically considered a subject of mandatory union bargaining, and police departments should consider whether a discussion with any bargaining units may be necessary prior to implementing the changes. In this case, the new state law will preempt any request by a union to lower the mandatory policy requirements, but there may be considerations that a union may wish to address within a compliant policy.

Law enforcement agencies should review the Act’s additional requirements and should also consider how unions may be implicated by any policy change involving drug and alcohol testing.

On August 18, 2017, Governor Rauner approved a bill that offers a minor but sensible modification to the Prevailing Wage Act. Public Act 100-0154 amends Section 9 of the Prevailing Wage Act that applies to those public bodies that use the Department of Labor’s determination of prevailing wages – that is, most public bodies. The Act permits the public body to post a hyperlink to the wage schedule for that body that is published on the Department of Labor’s website instead of requiring the body to publish the notice of determination in a newspaper of general circulation in the area.

Unfortunately, this bill does not free the public body from the requirement to mail a copy of its determination to any employer, association of employers or individuals or associations of employees who have asked for a determination of the rates, although this may be increasingly unnecessary with ready access by those parties to this data. However, at least by freeing public bodies of the newspaper publication requirement this amendment should result in a minor reduction in the local cost of administering the Act.

Under the new law, units of local government, including home rule units, “may not enact an ordinance prohibiting the use of Automated Driving System equipped vehicles on [their] roadways.” Furthermore, “[n]o unit of local government, including a home rule unit, may regulate Automated Driving System equipped vehicles in a manner inconsistent with [the Illinois Vehicle Code].”

However, the law does give units of local government the ability to regulate Automated Driving Systems equipped vehicles for “traffic control purposes.”

The law defines an “Automated Driving System equipped vehicle” as “any vehicle equipped with an Automated Driving System of hardware and software that are collectively capable of performing the entire dynamic driving task on a sustained basis, regardless of whether it is limited to a specific operational domain.”

Governor Rauner signed into law amendments to various existing laws that are intended to expand the consolidation of various units of local government. Part of the legislation expands the Local Government Reduction and Efficiency Division of the Counties Code to apply to all counties (it currently applies only to DuPage, Lake, and McHenry Counties). The amendments also better clarify how obligations of a dissolving unit of local government are administered and assumed by the absorbing unit of government.

An amendment to the Township Code removes the limit of townships to 126 square miles, thus making it possible for several townships to consolidate into one. Other amendments allow for more flexibility in township consolidation into other townships or into a municipality.

The scheduled effective date of the amendments is Jan. 1, 2018, although the effect of the amendments is conditioned on the passage of other pending bills.